In 2012, we decided to ask one of our panelists or an additional scholar to write texts for each of our Action Speaks’ topics. This one accompanies the 1965 Griswold v. Connecticut on October 24, 2012. We hope that you enjoy it.
Griswold v. Connecticut: A History
by Heather Munro Prescott, Ph.D., Professor of History, Central Connecticut State University

It is hard to believe that it has been less than half a century since the U.S. Supreme Court determined that neither the federal government nor the states could prevent individuals from obtaining birth control. A Connecticut statute passed in 1879 made the dissemination and use of birth control a crime for both physicians and users. The sole exception was the sale and distribution of condoms, but these were advertised as being “for the control of disease only.” Physicians who violated the 1879 risked loss of licensure and/or prison. Nevertheless some physicians quietly gave contraceptives to their patients. However, this was only available to women who could afford family physicians. Women who were too poor to pay for medical care, and who could not rely on male partners to use condoms, were left with no reliable birth control options.

During the height of the Great Depression of the 1930s, birth control advocates in the Nutmeg state decided to eliminate these economic disparities and began a concerted effort to overturn the state’s oppressive laws. In 1935, the Connecticut Birth Control League (CBCL) deliberately flouted the 1879 statute by opening a public birth control clinic in Hartford in 1935. After meeting with no opposition, the League set up clinics in major cities throughout the state, including Norwalk, Danbury, New Britain, New London, and finally Bridgeport, where the city prosecutor officially declared that the 1879 law did not prevent the clinic from providing services. The League’s luck turned when they established a clinic in Waterbury, the city with the highest percentage of Catholics in the state. In its decision on the ensuing criminal case, State of Connecticut v. Roger B. Nelson, et.al (1940), the Connecticut State Supreme Court found the state legislature could “reasonably hold that the artificial limitation of even legitimate child-bearing would be inimical to the public welfare,” and “injurious to public morals.” The CBCL had no choice but to close down their clinics.

Over the next two decades, the League struggled unsuccessfully tried to get Connecticut law overturned. Legislative campaigns proved futile. During the mid-1950s, the League decided their best option was to proceed with a test case. Charles Lee Buxton, chair of Yale’s obstetrics and gynecology department, agreed to be the lead plaintiff. In Poe v. Ullman and several companion lawsuits, Buxton claimed that the 1879 law infringed upon “property and liberty” as defined in 14th amendment by interfering with his practice of medicine; and by intruding on the liberty of his patients by barring their access to birth control. After the Connecticut Supreme Court upheld the state law, the plaintiffs appealed to the U.S. Supreme Court. In their decision for Poe v. Ullman (1961), the U.S. Supreme Court found that since the 1879 law was rarely enforced, private physicians and their patients faced little risk of prosecution. The Court stated it could not “be umpire to debates concerning harmless, empty shadows.” In a dissenting opinion, Justice Harlan called Connecticut statute “obnoxiously intrusive” into the institution of marriage. Dr. Buxton told a reporter that the decision “adds up to the rich getting contraceptives and the poor getting children.”

Shortly after the Poe decision, the Planned Parenthood League of Connecticut decided to test the law once again by opening a public clinic in New Haven. On their second day of operation, the clinic was investigated by two detectives from the New Haven police department. Clinic director Estelle Griswold eagerly told the officers about the clinic’s work and found two patients — Yale graduate students Joan Bates Forsberg and Rosemary Stevens — willing to give testimony confirming that the clinic was openly violating state law by giving them contraceptives. The Connecticut and circuit appeals courts found Griswold and her co-defendants guilty of violating the 1879 statute. This time, the U.S. Supreme Court agreed to hear the criminal case, Griswold v. Connecticut. In a 7-2 ruling handed down in 1965, the Court held that the Connecticut law violated a “right to marital privacy.” In the opinion, Justice William Douglas argued that in addition to the expressed guarantees of the Bill of Rights, other rights were contained within the “penumbras,” or shadows, existing along the margins of the Bill of Rights. These penumbras were “formed by emanations from those guarantees that help give them life and substance.” According to Douglas, the First, Third, Fourth, Fifth, and Ninth Amendments, protected more than the specific rights contained within each of them; they also established “zones of privacy” that the government was equally bound to protect.

The Griswold decision only applied to married couples, however. The Court stated that Connecticut state law unfairly intruded on the right to marital privacy: it said nothing about those who were unwed. Most states were either silent on the issue of whether single persons had the same privacy rights, or explicitly outlawed prescribing or distributing contraceptives to unmarried individuals. Violation of these birth control laws was considered a felony carrying up to five years in prison. Other states were less restrictive, but very few allowed unmarried persons below the age of twenty-one to obtain birth control without parental consent. In 1967, contraceptive salesman William R. Baird deliberately tested the Commonwealth of Massachusetts’ law against giving contraceptives and birth control advice to unwed minors. During the lecture at Boston University, Baird displayed various contraceptives and gave an unmarried female student a can of Emko contraceptive foam. Baird was promptly arrested by the Boston vice squad and charged with “crimes against chastity.” In 1972, the U.S. Supreme Court reversed Baird’s conviction, declaring in their decision Eisenstadt v. Baird, “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The way was paved for all women, regardless of marital status, to have access to safe and reliable birth control methods.

Suggested Reading

David. J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Berkeley: University of California Press, 1994.

On April 1, 1970, President Nixon signed the Public Health Cigarette Smoking Act into law. Among other provisions, including requiring that cigarettes and cigarette ads bear the now-ubiquitous slogan “The Surgeon General Has Determined That Cigarette Smoking is Dangerous to Your Health,” the legislation prohibited the advertising of tobacco on television and radio–to take effect the day after the New Year’s Day college bowl games. On January 1, 1971, the last television advertisement for tobacco–for Virginia Slims–ran on NBC on The Johnny Carson Show.

This is not simply a story about government regulation of a dangerous product: tobacco companies also went along with the ban on their own ads. Why did they agree to do so? How has tobacco been marketed since? What are the ethical responsibilities of advertisers who promote smoking and other activities harmful to human health?

With our panelists, Anne Landman, Susan Smulyan, and Robert Newbert, we explore the legacies of the intersection of our favorite form of mass communication with our favorite bad habit.

Panelists

Anne Landman is a tobacco document research specialist. She is currently Managing Editor at the Center for Media and Democracy.

Susan Smulyan is Associate Professor of American Civilization at Brown University. She is the author of Selling Radio: The Commercialization of American Broadcasting (1992). Professor Smulyan teaches courses in popular culture, advertising history, radio, digital scholarship, and American Studies methods.

Robert Newbert is CEO of Duffy & Shanley, Inc., a leading Providence-based advertising firm, and the former Chairman of the New England Council of the American Association of Ad Agencies. He is currently a Senior Advisor at the Garcia Lindsey Group and is active in many community and professional organizations.

About Action Speaks

Action Speaks is a series of contemporary topic-driven panel discussions centered around “Underappreciated Dates that Changed America.” For 17 years, we have provided a live venue for fellow citizens to engage in thoughtful discussions about history, culture and current events. The panels are hosted by Marc Levitt, recorded, edited and broadcast online and on radio stations around the US.

Markos Moulitsas’ Underappreciated Date

Recorded in Providence, Rhode Island, during Netroots conference in June 2012 by Marc Levitt